This License Agreement is made by and between Kin Workplace Solutions, LLC, a Delaware limited liability company (“Kin”), and the subscribing company or entity listed on the Service Order (as defined below) as the entity entering into this License Agreement. By accepting this License Agreement, you represent and warrant that you have the authority to enter into this Agreement on behalf of the business or entity that you represent (collectively “you” or “your”). The term “Agreement” means this License Agreement and the associated order for services made through the Kin website at www.kinhr.com (the “Service Order”). Any other capitalized terms are defined at the end of this Agreement or in the relevant Sections. The parties hereto agree as follows:
1. License Grant
Kin grants to you, and you accept, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-sublicensable, non-transferable, license during the term of this Agreement to use the Licensed Services (the “License”). Your rights to the Licensed Services are only as expressly granted in this Agreement and nothing further. Kin reserves all rights to the Licensed Services not expressly granted to you pursuant to this Agreement. The License begins on the date you accept this Agreement electronically as provided on Kin’s website at www.kinhr.com (the “Effective Date”), which will also be the Effective Date of this Agreement.
2. Use of Licensed Services
3. Updates and Support Services
Kin will provide updates to the Software, and, if applicable, any Add-ons. Updates, but not Add-ons, shall be provided to you without additional charge. Kin will provide you with commercially reasonable support as long as you are not in default of any material terms of this Agreement. Kin will respond to support requests as soon as reasonably and commercially practical on an as-needed basis at its own cost and expense. The support in using the Licensed Services may occur at the discretion of Kin by phone, email, or mail request(s). Kin will provide you with web access to any online Kin training materials, for your internal use only, at no additional charge.
4. Term, Fee and Payment
The License granted by this Agreement is for a term of one (1) year, which begins on your payment of the license fee described in the Service Order (the “License Fee”), and extends to any trial period Kin may offer prior to the one (1) year term. If you decide to forego payment of the License Fee at the end of any trial period, the License immediately terminates, but the terms of this Agreement survive as described. At the end of the each one-year term, the License will automatically renew for subsequent one-year terms, unless terminated in accordance with Section 5. The License Fee for any subsequent one-year term shall be at the initial term price unless Kin notifies you of a price change at least thirty (30) days before the end of the then-current term, and shall be due at the commencement of any subsequent term. The License Fee is payable in United States funds only. You also agree to pay any and all fees, assessments, and taxes associated with the amounts due under this Agreement.
6. Copyright Title
The Licensed Services including any copies, in whole or in part, and all copyrights, trade secrets and other related proprietary rights, including any Derivative Work are and will remain the sole property of Kin, regardless of the use made by you and regardless of the format. The Licensed Services are protected by United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Services and is not a sale of any rights in the Licensed Services. You agree to treat the Licensed Services with at least the same standard of care as you treat any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. You agree not to challenge (and to use best efforts to cause your end users not to challenge) Kin’s ownership in or enforceability of Kin’s rights in and to any Licensed Services or any related information technology.
7. Trade Secrets
The Licensed Services are trade secrets of Kin and contain valuable proprietary products embodying substantial creative efforts and confidential information, ideas, and expressions. You agree to take appropriate action to protect the confidentiality of the Licensed Services. You further agree not to modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Services in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Services except as expressly permitted hereunder. You also represent and warrant to us and agree that you have not and will not use any Licensed Services for the purpose of research or benchmarking or any related endeavor with the goal, aim or intent of creating a competing or similar products. The provisions of this Section shall survive the termination of this Agreement.
You agree that the entity entering into this Agreement may not assign or transfer the License or any other rights granted in this Agreement without the prior written consent of Kin. Changes to the applicable account manager may be made in writing or through applicable features available through the Kin website. Any attempt to assign or otherwise transfer any of the rights, duties or obligations of this Agreement without compliance with this Section is void ab initio. Kin may assign this Agreement to any successor to all or substantially all of the assets of Kin, whether by merger, acquisition, asset sale, exclusive license, stock sale or otherwise.
9. Use of Name
Kin may identify you in Kin advertising and marketing materials. You hereby grant Kin a non-exclusive right to use your trademarks, logos, and other materials provided by you to Kin for this limited purpose.
You and Kin agree that all information that either party receives from the other that is marked “confidential” by the disclosing party (referred to as the “Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry (the “Confidential Information”) will be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions described below.
Each party agrees, during the term of this Agreement and for a period of five years thereafter, to keep confidential all Confidential Information disclosed to it by the other party, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information); provided, that neither party shall have any obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been known publicly; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (the “Recipient”); (c) have become known publicly; (d) have been known otherwise by the Recipient before communication by the Disclosing Party; (e) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information.
Except as prohibited by applicable law or legal process or to the extent part of an examination by a regulatory or self-regulatory body, if the Recipient is requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement. To the extent this Agreement applies, if such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Agreement, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Your obligations under this paragraph will survive the termination of this Agreement or of any License granted under this Agreement for whatever reason.
11. Compliance With Laws
12. Kin Warranty And Indemnity
Kin agrees to defend, indemnify and hold harmless you, your parent company and their respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), judgments and claims on the basis that your authorized use of the Software violates or infringes any U.S. patent that has issued prior to the Effective Date, copyright, trademark, or trade secret; provided that (a) you give Kin prompt written notice of the claim; (b) Kin has full and complete control over the defense and settlement of the claim; (c) you provide assistance in connection with the defense and settlement of the claim as Kin may reasonably request; and (d) you comply with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Kin has the right to settle the claims of any claimant(s) in its sole and absolute discretion. Kin will have no obligation to provide such indemnification for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by you, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) your failure to use the latest release of the Software or to comply with instructions provided by Kin, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Kin where such infringement would not have occurred absent such modification. You agree to reimburse Kin for any costs or damages that result from these actions. This Section 12 states Kin’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement by Kin of any third party intellectual property right by the Software.
13. Your Defense And Indemnity
You agree to defend Kin from any actual or threatened third party claim arising out of or based upon your use of the Licensed Services or your breach of any of the provisions of this Agreement. Kin will: (a) give you prompt written notice of the claim; (b) grant you full and complete control over the defense and settlement of the claim; (c) assist you with the defense and settlement of the claim as you may reasonably request and at your expense; and (d) comply with any settlement or court order made in connection with the claim. You agree to indemnify Kin against: (i) all damages, costs, and attorneys’ fees finally awarded against Kin in any proceeding described above; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Kin in connection with the defense of such proceeding (other than if you have accepted defense of such claim); and (iii) if any proceeding arising under this Section is settled, you will pay any amounts to any third party agreed to by you in settlement of any such claims.
14. Mutual Warranties
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
15. Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE LICENSED SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU BEAR ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, KIN DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE LICENSED SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to you. Any warranties made in this Agreement are only for your benefit.
16. Limitation on Liability
IN NO EVENT WILL KIN, ITS SUPPLIERS, SHAREHOLDERS, MEMBERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE LICENSED SERVICES OR INFORMATION, EVEN IF KIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KIN BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY LICENSED SERVICES OR INFORMATION, EXCEPT IN THE CASE OF KIN’S GROSS NEGLIGENCE WITH RESPECT TO SUCH USE OR MISUSE. YOU ASSUME RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE LICENSED SERVICES. UNDER NO CIRCUMSTANCES WILL KIN’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO KIN DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY TO YOU.
You agree that the obligations provided herein are necessary and reasonable in order to protect Kin and its business interests, and you expressly agree that monetary damages alone may be inadequate to compensate Kin for any breach by you of your covenants and agreements set forth herein. Accordingly, you acknowledge that the unauthorized use, transfer, or disclosure of the Licensed Services or Information, or copies thereof will (a) substantially diminish the value to Kin of the proprietary interest that are the subject of this Agreement; (b) render Kin’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If you breach any of your obligations with respect to the use the Licensed Services or Information, Kin is entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief. For such purposes, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Illinois, and they do agree that venue shall be proper in the County of Cook in the State of Illinois. In addition to any other remedies that may be available, in law, in equity or otherwise, Kin shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by you, without the necessity of proving actual damages.
Any controversy or claim arising out of or relating to this Agreement, including, without limitation, the making, performance, or interpretation of this Agreement, shall be settled by arbitration in Cook County, Illinois, except any action for injunctive relief that may be brought pursuant to the terms of Section 17. Unless otherwise agreed, the arbitration shall be conducted in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held before three arbitrators, one arbitrator chosen by each of the parties and the third arbitrator chosen by the two arbitrators. Each of the arbitrators shall be chosen from a panel of attorneys knowledgeable in the field of business law in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The parties agree that the arbitrators shall have no jurisdiction to consider evidence with respect to or render an award or judgment for punitive damages (or any other amount awarded for the purpose of imposing a penalty) or any other damages inconsistent with the terms and provisions of this Agreement. The parties agree that all facts and other information relating to any arbitration arising under this Agreement shall be kept confidential to the fullest extent permitted by law. Any ruling rendered by the arbitrators shall be final and non-appealable and shall be enforceable in any court of competent jurisdiction.
19. Attorney Fees
In case of arbitration or action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
20. Governing Law
This Agreement shall be governed by the laws of the State of Illinois, U.S.A.
21. Entire Agreement; Amendment.
This Agreement and the Service Order together are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing or confirmed electronic transmission (including electronic confirmation or “click-through” formats) between the parties.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
23. No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.
24. Severability; Binding Effect
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 8, assigns.
25. Force Majeure
Kin will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Kin’s reasonable control, so long as Kin uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
All notices, consents, and other communications permitted or required to be given hereunder (herein referred to as a “Notice”) shall be in writing and addressed to the address set forth on the Service Order.
Any party may change its address or fax number for notification purposes by giving the other party Notice of the new address or fax number and the date upon which it will become effective in accordance with the terms of this Section. A Notice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its transmission by fax.
For purposes of this Agreement, the term “Licensed Services” means any and all of the following:
The term “Derivative Work” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of any Licensed Services or any form in which any Licensed Services may be recast, transferred, or adapted.
The term “Information” means information resulting from the use of any or all of the Licensed Services.
The term “Licensed Materials” refers to any and all materials including documentation and support material, including any on line training materials, in hard copy and electronic format (if available) designed to assist you in the understanding, application, capability, maintenance, or use of the Licensed Services which are delivered to you by Kin pursuant to and/or during the term of this Agreement, and any updates or modifications thereof.
The term “Software” refers to (i) the proprietary, web based software for human resources management, made available to you pursuant to the terms of this Agreement as more fully described on the Service Order, (ii) any Add-ons as described on the Service Order (the “Add-ons”), and (iii) any Kin delivered updates, upgrades, enhancements, or modifications to the Software.